Notice And Comment: ‘Clerks Don’t Quit’
Notice And Comment: ‘Clerks Don’t Quit’
Or do they? It’s a subject of heated debate.
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Hello from the Bahamas, where my husband Zach and I and our two boys are on a family vacation.1 My vacations always seem to coincide with busy times here at Original Jurisdiction. I wrote the most-read story of this newsletter, my account of the disruptive protest of Judge Kyle Duncan at Stanford Law School, from a cruise ship.
Actually, correction: the Judge Duncan story is now the #3 story in the three-plus years of this newsletter. The #2 story is my breaking the news of how two clerks to Judge Aileen Cannon (S.D. Fla.) quit mid-clerkship, and the #1 story is my deep dive into exactly why they left.
An important element of the Cannon clerk story is that it’s rare for clerks to quit on judges. It’s especially rare for them to quit based on how they were treated by their judge or conditions in chambers.
But how rare is “rare”? In the past few days, I’ve been inundated with opinions. Let’s begin with the conventional wisdom, nicely captured by this tweet from Professor Eric Segall:
Judge Cannon, who appears to be in Trump’s back pocket, has apparently had two law clerks quit, according to the always reliable @DavidLat.
Clerks never quit. That’s all.
Consistent with the “clerks don’t quit” conventional wisdom, I clerked for the Ninth Circuit, and I’m unaware of a clerk to any judge quitting during the year I was at the court. Nor am I aware of any clerk from any year who quit a clerkship with my own judge because of the judge’s behavior or environment in chambers—as opposed to a personal issue, like a medical or familial crisis.2 [Note the UPDATE added below (2:45 p.m.).]
The reasoning: assuming the clerk isn’t a permanent or career clerk, they’re there for only a year or two—so even if a clerkship experience is miserable, many or even most clerks just grit their teeth and bear it. The awful experience lasts for a year; the résumé boost lasts for a career.
In addition, because quitting a clerkship is at least unusual or not the norm (whether or not it’s “rare”), seeing a clerkship that lasts for less than the expected time is viewed by some potential employers as a red flag on a résumé. It’s at least an item requiring explanation by the candidate—which is why it was smart of “Mary,” one of the clerks who quit on Judge Cannon, to clear it with two future employers.
And now, here’s some pushback to the conventional wisdom, from a current clerk (originally added as an update to my earlier post):
I’m surprised by how surprised people are that the experience was bad enough for clerks to quit. Clerks do quit, half of all judges are below-median employers (by definition), and the median is not necessarily that high.
Regarding what Aliza Shatzman of the Legal Accountability Project is trying to do—”to ensure that law clerks have positive clerkship experiences, while extending support and resources to those who do not”—I think it would gain even more traction if people really knew how widespread the problem was. Hopefully your reporting can contribute to that.
I am completely making this up, but I bet if you were to ask law professors what percentage of clerks quit a clerkship, they’d say less than 1 percent. I would put the actual number at 5 percent or more based on my peers, forums, word of mouth, etc.
See also this email I received from a clerk who quit:
Re: “clerks never quit,” I cannot begin to describe how frustrating and horrifying I find this sentiment. Clerks do quit, and they do it because a lot of judges are horrible bosses.
I know this because I was one of them. My judge was incredibly unpleasant to work for and then escalated into full-blown disability discrimination that caused my health to significantly worsen. I am still coping with the lasting physical effects of staying as long as I did, and my only regret is not leaving sooner. I didn’t leave sooner in part because statements like this made me (wrongly) terrified I would torpedo my career.
But here’s a response I got from a former clerk who does believe quitting is rare:
From my experience, clerks truly do not quit due to the work environment, even when it’s awful. Every situation I know of where recent clerks have quit has been due to personal/family circumstances—mostly someone unexpectedly falls ill, but I did hear of one situation where the clerk unexpectedly was offered their dream job and accepted it with the judge’s blessing.3
I know someone who’s been warned off of accepting a clerkship by a former clerk of the judge, and I know a clerk who had a horrible experience and who I really thought would quit, but didn’t. So I’m not denying that bad clerkship experiences exist, just that I don’t think people quit them. Maybe I just don’t know the supposed 5 percent of people who quit for bad experiences, but I’m inclined to think that the rate is much closer to zero, and most clerks who quit do so for reasons that are external to chambers.
What’s your opinion? Feel free to contribute to the comments section of this Notice and Comment post—open to all subscribers, not just paid ones. I look forward to a robust debate.
UPDATES:
I just learned that at least one clerk to another judge quit during my clerkship year (1999-2000); please let me know of others. I also believe at least one judge fired at least one clerk during my year, but that was firing—which might be a good subject for a future post, so please send me thoughts on that topic too. [2:45 p.m.]
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Being on vacation is why I didn’t publish a (very labor-intensive) Judicial Notice news roundup this past weekend. But I thought it might be nice to put up a quick post to start a discussion about the hot topic of clerk quitting, to provide some (non-labor-intensive) content while I’m away. I also recorded two podcast episodes from the Bahamas, for Advisory Opinions and Movers Shakers & Rainmakers, so look out for those while I’m gone.
To all my new subscribers from the past week, thanks for joining the Original Jurisdiction community. Regular programming—which typically consists of two to four posts a week, one of them a Judicial Notice news roundup over the weekend—will resume on Monday, April 1. In the meantime, please check out other stories on the homepage or in the archives, including past episodes of the Original Jurisdiction podcast (which you can subscribe to on Apple Podcasts, Spotify, or your podcasting platform of choice).
For those of you who are fascinated by the federal judiciary, my past podcast guests include four sitting judges—Judges Pauline Newman (Fed. Cir.), Amul Thapar (6th Cir.), Stephen Vaden (Ct. Intl. Trade), and Frederic Block (E.D.N.Y.)—as well as one former judge, Gary Feinerman (N.D. Ill.). You might also be interested in this installment of my advice column, Asked And Answered: To Clerk, Or Not To Clerk?
Of course, I acknowledge the possibility that some clerks did quit out of discontent and I never found out, as well as the possibility that clerks quit out of unhappiness but gave a personal reason as a pretext—as I’m guessing the Cannon clerk who withdrew for reputational concerns did, instead of saying, “I’m withdrawing because your name is mud.”
The judge for whom I clerked, Judge Diarmuid O’Scannlain—a wonderful boss, and a friend and mentor to this day—served as an active-status judge on the Ninth Circuit for more than 30 years, as well as a senior judge to this day. I believe that over this 38-year period, he had approximately three clerks depart before their scheduled end dates, two related to pregnancy/childbirth and one related to a serious illness in the clerk’s immediate family.
From a former clerk who’s now a Biglaw partner:
“Some judges are below-average bosses, but some clerks are below-average employees. I know of some great judges (and great bosses) who had clerks who left midstream because the clerks themselves had problems that made them unsuitable for demanding positions. I think this is especially true now, when law students are being told that they should be coddled—not have to work very hard, not have to listen to opinions they dislike, etc.”
As I often like to do, I'll kick things off by posting a comment I received from a reader, in response to this observation:
"Clerks do quit, half of all judges are below-median employers (by definition), and the median is not necessarily that high."
The comment:
"Aren't federal judges as a group vastly different from employers writ large? Given the qualifications and background checks required of judges, you would think that they would be—in the aggregate, acknowledging outliers—far better bosses than the average supervisor in the average workplace."